Preview:

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

Jan 22 2008, 9:22 am

FILED
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANTS: JON L. ORLOSKY Muncie, Indiana

ATTORNEYS FOR APPELLEES: STEVEN D. MURPHY LESTER H. COHEN DeFur Voran, LLP Muncie, Indiana

IN THE COURT OF APPEALS OF INDIANA
JERRY TERRY, DORMAN HILL, BARRY CLEVENGER, DANIEL WICKLIFFE, and TERRY POWERS, Appellants-Plaintiffs, vs. MAX RUDICEL, BARBARA RUDICEL, JAMES SIEFERT, KAREN SIEFERT, RON CHAMBERS, JAWANA CHAMBERS and RENNA ROWAN, Appellees-Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 18A04-0705-CV-266

APPEAL FROM THE DELAWARE CIRCUIT COURT The Honorable John J. Feick, Judge Cause No. 18C04-0604-PL-7

January 22, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

Jerry Terry, Dorman Hill, Barry Clevenger, Daniel Wickliffe, and Terry Powers ("Appellants") appeal from the trial court's judgment that there is an easement over their land held by Dr. Max and Barbara Rudicel, James and Karen Siefert, Ron and Jawana Chambers, and Renna Rowen ("Appellees"). We affirm in part and reverse in part. FACTS AND PROCEDURAL HISTORY Appellants live in the Forest Hills Addition on Cherrywood Lane, which borders their properties on the east side.1 Appellees live to the south of Appellants and do not have direct access to any road from their properties. Appellees' addresses are on

Isanogel Road, which borders the northern edge of the northernmost Appellant's property. Abutting the western edge of Appellants' property, there is a twenty-foot easement for ingress and egress. A gravel lane, which Appellees use to access their property, lies partially within that twenty-foot easement; however, it encroaches onto Appellants' property by about five feet. The Appellees do not use the western portion of the twenty-foot easement because of encroachments on that side including vegetation, a swimming pool, and dog kennels. A deed from 1963 purports to create a public road twenty-five feet in length inside the western edge of the Wickliffes' and Terrys' properties. The portion of the gravel lane that runs along their properties is entirely within the twenty-foot easement and the twenty-five foot area.

1

A map is attached for clarity, although it does not show the location of Appellees' property. While the map refers to "Isonagel Road," all the other materials in the record refer to it as "Isanogel Road;" therefore, we will call it Isanogel Road.

2

The Appellees' properties had all been owned by Dr. Thomas Brown.

The

Rudicels purchased part of his property in 1972. This parcel was eventually purchased by the Sieferts. In 1975, the Rudicels purchased a home on a different part of the land previously owned by Dr. Brown. Dr. Rudicel believed Dr. Brown had lived off Isanogel Road ten to twelve years prior to 1972. The Rudicels have used the gravel lane several times a day since 1972. Fire trucks and delivery trucks have also used the gravel lane. The Terrys moved to their home on Cherrywood Lane in 2003. In 2004, they conducted a survey, which indicated the gravel lane encroached on their property. On April 7, 2006, the Appellants filed a suit for damages and a permanent injunction against the Appellees' use of the portion of the gravel lane located on their properties. Appellees raised a prescriptive easement as an affirmative defense. They also filed a counterclaim alleging the existence of a public road and a prescriptive easement. A bench trial was held on February 8, 2007. The trial court found the Rudicels had lived off Isanogel Road since 1971, Rowan had lived there since 1973, the Sieferts had lived there since June 12, 1986, and the Chamberses had lived there since 2000. All of their properties had previously been owned by Dr. Brown; however, the Appellees did not all purchase directly from him. The trial court found there was a public roadway as described in the 1963 deed; part of the gravel lane was within an express twenty-foot easement; the Appellees had established an easement by necessity and an easement by prescription to the rest of the gravel lane; and Appellees "are owners of the entire length of the gravel lane." (Appellants' App. at 14.)

3

DISCUSSION AND DECISION Appellants argue the trial court erred in determining a public road exists, an easement by necessity exists, an easement by prescription exists, and Appellees own the gravel lane. When the trial court enters findings of fact and conclusions of law, we ask whether the evidence supports the findings, and whether the findings support the judgment. Nodine v. McNerney, 833 N.E.2d 57, 64 (Ind. Ct. App. 2005), reh'g granted on other grounds 835 N.E.2d 1041 (Ind. Ct. App. 2005), trans. denied 855 N.E.2d 998 (Ind. 2006). We consider only the evidence most favorable to the judgment along with all reasonable inferences to be drawn from it. Id. We will not set aside the judgment unless it is clearly erroneous. Id. 1. Effect of the 1963 Deed

Appellants first assert the court erred in finding a 1963 deed created a public road. In 1963, Lela and Carl Bovard conveyed a parcel of land to Philip and Betty Tetrault. That parcel included most of the Terrys' and the Wickliffes' property. The deed states, "A strip of ground twenty-five (25) feet of equal width off the entire West side of the above described tract . . . shall be reserved for a public roadway and hereby is dedicated to the public." (Appellants' App. at 32.) Apparently, that land was never used as a public roadway. In 1965, the Tetraults conveyed the land back to the Bovards. The land subsequently became part of the Forest Hills Addition. The plat of the addition does not show a public road in that location. Appellees argue the deed effectively created a public road; therefore, Appellants cannot interfere with their use of the portion of the gravel lane located within the area 4

dedicated to the public. Poznic v. Porter County Development Corp., 779 N.E.2d 1185, 1193 (Ind. Ct. App. 2002), lists four requirements for statutory dedication: platting of the street, acknowledgement by the grantor, proper municipal approval, and recording. Appellees argue municipal approval can be inferred from the recording of the deed, but do not address the remaining requirements of statutory dedication. The elements of statutory dedication are not addressed in the trial court's findings of fact and conclusions of law, nor have we been directed to evidence from which the trial court could have concluded all the elements of statutory dedication were met. There may be a common law dedication even if a statutory dedication is defective. Id. at 1192. The elements of common law dedication are intent of the owner to dedicate and acceptance by the public of the dedication. North Snow Bay, Inc. v. Hamilton, 657 N.E.2d 420, 422 (Ind. Ct. App. 1995). Evidence of a dedication includes whether the existence of the street is shown by a public plat accompanied with use by the public as a street, whether there is evidence of a parol dedication accompanied by public use, whether there is evidence of the owner selling lots on opposite sides of a strip suitable for a street and the public using the strip as such, or whether there has been a taking by the lawful authority for public use. Id. at 423. There is no evidence in the record that the public used the twenty-five foot strip or that there was a lawful taking. Therefore, the evidence does not support a finding a public road exists on the Wickliffes' and Terrys' properties.2

2

Appellees also argue Appellants cannot claim this finding was clear error because it was based on an exhibit Appellants introduced at trial. We cannot agree that by offering the 1963 deed into evidence, the Appellants conceded any and every legal conclusion the trial court might draw from it.

5

2.

Easement by Necessity

Next, Appellants argue the trial court erred in finding an easement by necessity. Appellees do not respond to this argument; therefore, Appellants need only establish prima facie error. Ind. Patient's Compensation Fund v. Butcher, 863 N.E.2d 11, 14 (Ind. Ct. App. 2007). Prima facie error is "error that we are able to ascertain `at first sight, on first appearance, or on the face of it.'" Id. (citation omitted). Appellants argue there was no necessity for an easement on their land when Appellees' land was divided because Appellees had a twenty-foot easement by which they could reach their land. An easement of necessity will be implied when "there has been a severance of the unity of ownership of a tract of land in such a way as to leave one part without access to a public road." An easement of necessity may arise, if ever, only at the time that the parcel is divided and only because of inaccessibility then existing. To demonstrate that an easement of necessity should be implied, a plaintiff must establish both unity of title at the time that tracts of land were severed from one another and the necessity of the easement. Cockrell v. Hawkins, 764 N.E.2d 289, 292-93 (Ind. Ct. App. 2002) (citations omitted). The trial court found: 52. That it is also undisputed that the only access to [Appellees'] real estate is the gravel lane at issue. The [Appellees] have no other means of accessing their property. 53. That being the only means of ingress and egress, the gravel lane is reasonably necessary for the fair enjoyment of the [Appellees'] real estate. (Appellants' App. at 13.) The trial court noted the existence of the twenty foot easement, but did not address its impact on the issue of whether Appellees have an easement by necessity. The findings do not address whether there was a necessity "at the time that the 6

parcel is divided and only because of inaccessibility then existing." Cockrell, 764 N.E.2d at 293 (emphases added). Although the testimony at trial established there are now impediments to using the twenty-foot easement, there was no evidence a necessity existed at the time Appellees' properties were divided. Therefore, Appellants have established prima facie error in the finding of an easement by necessity. 3. Easement by Prescription

Appellants next argue the trial court erred in finding an easement by prescription. Our Supreme Court recently reformulated the elements of a prescriptive easement: (1) Control

Download Jerry Terry, Dorman Hill, Barry Clevenger, et al v. Max and Barbara Rudicel, Jam

Indiana Law